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Pushkar Raj Vs. the State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1981CriLJ1910
AppellantPushkar Raj
RespondentThe State of Punjab
Cases ReferredJoginder Singh v. State of Punjab
Excerpt:
.....of this court that with the aid of section 8 of the general clauses act the legislative intent is clearly marked and section 360 of the new code has to be read in section 19 of the probation of offenders act in place of section 562 of the old code......directed against the judgment of the sessions judge, ludhiant, dated january 11, 1980, whereby the trial magistrate who previously convicted him fox an offence under section 9 of the opium act was required to hear the petitioner on the question of sentence and then to pass a proper sentence commensurate with the gravity of the offence.2. it had been alleged against the petitioner, aged 23 years, that at railway station, ludhiana, on august 14, 1977, he was found in possession of 10 kg. of opium. the prosecution case was supported by head constable gur-bachan singh pw 1, constable kiral singh pw 2 and krishan lai pw 3 a private citizen. the chief judicial magistrate, ludhiana, by his judgment dated july 31, 1979, after convicting the petitioner for the offence already mentioned granted.....
Judgment:
ORDER

C.S. Tiwana, J.

1. This revision on behalf of Pushkar Raj is directed against the judgment of the Sessions Judge, Ludhiant, dated January 11, 1980, whereby the trial Magistrate who previously convicted him fox an offence under Section 9 of the Opium Act was required to hear the petitioner on the question of sentence and then to pass a proper sentence commensurate with the gravity of the offence.

2. It had been alleged against the petitioner, aged 23 years, that at Railway Station, Ludhiana, on August 14, 1977, he was found in possession of 10 Kg. of opium. The prosecution case was supported by Head Constable Gur-bachan Singh PW 1, Constable Kiral Singh PW 2 and Krishan Lai PW 3 a private citizen. The Chief Judicial Magistrate, Ludhiana, by his judgment dated July 31, 1979, after convicting the petitioner for the offence already mentioned granted him the benefit of Section 360 of the Code of Criminal Procedure and released him on probation on the furnishing of a bond with two sureties in the sum of Rs. 10,000/-. The petitioner filed an appeal against his conviction to the Sessions Judge who considered his release on probation to be unwarranted by the facts of the case. The Magistrate took into consideration the age of the petitioner which at that time was stated to be 24 or 25 years, the fact that he had passed the Intermediate Examination and that he was carrying on a respectable business of a cloth merchant. The Sessions Judge considered these grounds to be insufficient for enabling the petitioner to take advantage of Section 360 of the Code of Criminal Procedure and felt somewhat embarrassed in himself awarding a proper sentence as the State had not filed any revision under Section 11(4) of the Probation of Offenders Act which provides that the appellate Court or the High Court in exercise of is power of revision may set aside an order granting probation and in lieu thereof pass sentence on the offender according to law. The learned Sessions Judge, after appreciating the evidence on record, came to the conclusion that the conviction of the petitioner was maintainable and that a sentence of imprisonment was required to be passed against him. He then acted suo motu under Section 397 of the Code of Criminal Procedure and gave tfais finding that the case should be remanded to the trial Magistrate for the award of the sentence. , He then took note of the provisions contained in Section of the Code of Criminal Procedure for giving, this finding that what the appellate Court could As in n appeal could also be done by a revisional Court in revision. He referred to Section '386(a)' of the Code of Criminal Porcedure as authorising him to take that kind of action which he ultimately took. There is no such provision as mentioned by the Sessions Judge. It appears that he wanted to apply Section 386(a) of the Code of Criminal Procedure. That provision is also not applicable. It provides as to what an appellate Court can do in an appeal from an order of acquittal. In relation to the action to be taken in an appeal from conviction it would be Clause (b) of Section 386 of the Code which could apply. The following were thus the powers which could be exercised

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.

3. In fairness to the learned Counsel for the petitioner it may be stated here that he has not at all raised any such argument that the conviction of the petitioner is not justified. He has urged that the powers of the Sessions Judge even in revision did not extend to the ordering of a J-e-trial so as to direct the Magistrate to pass a sentence of imprisonment. He has cited Pratul Chaudhari v. The State 1978 Chand LR (Cri) 98 (Delhi), which lays down that the appellate Court has no power of remand except for the purpose of re-trial. A remand for the purpose of hearing the accused on the question of sentence was held to be not within the jurisdiction of the Court of Session. It has, however, been observed that the High Court can invoke its inherent powers in similar circumstances in appropriate cases.

4. Inherent powers have necessarily to be invoked as Section 360 of the Code of Criminal Procedure under which the trial Magistrate proceeded to act stands repealed by virtue of Section 19 of the Probation of Offenders Act. Section 18 of the said Act lays down that the Act cannot be applied in certain contingencies which sore not relevant in the present case. Then Section 19 of the Act says that, subject to the provisions of Section 18, Section 562 of the Code of Criminal Procedure shall cease to apply to the State or parts thereof in which the Act is brought into force. This Section 562 is of the old Code of Criminal Procedure. After the new Code came into force Section 19 of the Act was not suitably amended so as to substitute Section 360 for Section 562. However, this view has been taken in Gurbaehan Singh v. State of Punjab 1980 Cri LJ 417, by a Division Bench of this Court that with the aid of Section 8 of the General Clauses Act the legislative intent is clearly marked and Section 360 of the new Code has to be read in Section 19 of the Probation of Offenders Act in place of Section 562 of the old Code. Thus the order of the trial Magistrate in releasing the petitioner on probation under Section 360 of the Code of Criminal Procedure is without jurisdiction. If at all he intended to act, he could do so only under the provisions of the Probation of Offenders Act.

5. Thus the impugned order passed by the Sessions Judge is set aside as being contrary to the provisions of the Code of Criminal Procedure. The order passed by the Magistrate with regard to the release of the petitioner on probation is quashed. The case is remanded back to the Magistrate for the passing of the sentence according to law. In this respect he should not be influenced1 by what the Sessions Judge has said for the remand of the case but instead1 he should apply his independent mind of the point whether in a case relating to the recovery of 10 kg. of opium the petitioner should be released on probation; or not. He should, however, take note of the observations of the Supreme Court in this respect as quoted at page 215 in a Full Bench judgment of this Court reported as Joginder Singh v. State of Punjab 1980 Chand LR1 (Cri) 196 : 1980 Cri LJ 1218, The petitioner is directed to make his appearance before the trial1 Magistrate on March 19, 1981, so that the case, may further proceed against him.


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